Pubdate: Wed, 19 Jun 2013
Source: Albuquerque Journal (NM)
Copyright: 2013 Albuquerque Journal
Contact:  http://www.abqjournal.com/
Details: http://www.mapinc.org/media/10
Author: Mark Oswald

JUSTICES: CHOPPER RAID NOT COERCIVE

State Supreme Court Upholds Seizure of 14 Pot Plants in Taos Area

An Army helicopter hovering overhead, officers armed with 
semiautomatic weapons and a fleet of law enforcement vehicles didn't 
constitute illegal coercion when a 72-year-old man gave permission 
for a search of his Taos County home, the state Supreme Court has ruled.

That means a guilty plea by Norman Davis, now 78, for possession of 
marijuana apparently will stand.

The State Police operation that resulted in Davis' arrest - dubbed 
"Yerba Buena 2006" - was seeking pot plantations, and it included 
personnel from the Game and Fish Department, the National Guard and a 
regional drug enforcement task force. Two Army helicopters were used.

The raid on Davis' house took place after a spotter in one of the 
helicopters observed "vegetation" in Davis' greenhouse and plants 
behind his home. The raid netted 14 marijuana plants, which Davis 
said were for personal use.

Davis was charged with possession of 8 ounces or more of marijuana, a 
fourth-degree felony, and possession of drug paraphernalia.

Davis' lawyers argued in court filings that the helicopter 
surveillance of his house violated the federal and state 
constitutions and that his consent to the search was not voluntary.

But as the Supreme Court noted in its decision last week, Davis did 
in fact sign a consent form allowing the search of his house, after 
some hesitation.

One of the responding officers told him police would obtain a search 
warrant within about 30 minutes if Davis refused. "Well, I guess I 
don't really have any options here, do I?" Davis said before signing 
the form, according to audio from the officer's belt recorder that is 
cited in court records.

When first asked, he said. "I'm not really thrilled with you 
searching my house" and "I don't know if I should do this."

Davis had gotten out of bed after being bothered by the noise of the 
helicopter hovering as low as 50 feet over his house, the Supreme 
Court decision says. Five or six law enforcement vehicles and about 
that many ground officers showed up along with the chopper.

Davis couldn't be reached for comment Tuesday. In 2011, he told the 
Journal the case was about more than constitutional 
search-and-seizure questions.

"It's like a big, stupid mistake," he said. "Hundreds and billions of 
dollars are being spent to put people in jail for growing a harmless weed."

In 2007, Davis entered a guilty plea, conditioned on the outcome of 
an appeal, to one count of possession of a controlled substance. His 
motion to suppress evidence from the police raid had been denied at 
the trial court level. Davis was placed on one year's unsupervised 
probation and then took the case to the state Court of Appeals.

Before the case reached the Supreme Court, Davis got some sympathy as 
his motion to suppress the evidence moved through the courts.

The district judge who refused to throw out the evidence did find 
"merit to the claim that police swooped in as if they were in a state 
of war, searching for weapons or terrorist activity."

District Judge John Paternoster of Taos found the search "just barely 
permissible," according to the case narrative in state Court of 
Appeals records.

The Court of Appeals court ruled in Davis' favor, and for throwing 
out the evidence found in the search. The appeals court asserted that 
Davis' consent was "the product of duress and coercion or acquiescence."

When police asked permission to search, Davis "was surrounded by 
numerous uniformed, armed law enforcement officers and several law 
enforcement vehicles while a helicopter hovered overhead," the 
appellate court stated in its October 2011 opinion. The officers were 
"heavily armed, carrying both their service handguns and AR-15 
semiautomatic weapons," the decision noted.

The appeals court ruling also said that when an officer told Davis it 
would take only about 30 minutes to get a search warrant, Davis had 
reason to believe that "his refusal to consent was futile."

But the Attorney General's Office took the case to the Supreme Court, 
which in its ruling Thursday didn't buy the argument that Davis was 
coerced by the heavy law enforcement presence.

In the opinion written by Chief Justice Petra Jimenez Maes, the high 
court said Davis can be heard on the officer's belt recording saying 
"sure" and "all right" when asked about a search. "Nothing in the 
record indicates that (Davis) ever firmly objected to or protested" 
the officer's request to search, the opinion says.

Also, the Supreme Court noted, Davis was never seized and was allowed 
to move about the property. When the officer told Davis police would 
get a search warrant if Davis didn't give consent, the officer was 
merely providing a "reasonable explanation of the process an officer 
would follow," the opinion says.

Also, the conversation between Davis and the officer lasted nine 
minutes and was "calm and slow," Maes wrote.

The officers on the scene established a perimeter and there was no 
evidence they acted unprofessionally or unholstered weapons, the 
opinion says. "Accordingly, the mere presence of armed officers was 
not enough to create coercion," the high court found.

"While the Court of Appeals placed great significance on the presence 
of the police helicopter, the State argues, and we agree, that there 
is no evidence that the helicopter influenced (Davis') consent," the 
opinion says. "In fact, the only testimony on record regarding 
Defendant's feelings about the helicopter was that he was bothered by 
the noise and had to get out of bed."
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